The Skadden, Arps 2010 FDI Moot
MODE OF COMPETITION EXPLANATORY NOTES
MEMORIALS AND COUNTER MEMORIALS
Memorials (and counter-memorials) will compete on the basis of a Swiss tournament1
according to the quality of analysis of the issues involved, persuasiveness of the arguments,
logic and reasoning, writing, knowledge of the facts, use of authorities and extent of the
research.
ORALS - TEAMS
Teams will be allocated to 4 groups (e.g. blue, red, yellow, green) according to memorial
scores and geography. In each group, the teams will also compete on the basis of a Swiss
tournament over 4 rounds. In the preliminary rounds, a team wins a match if the aggregate of
the raw scores that the arbitrators have given its advocates together with its weighted (25%,
i.e. max 75 points) memorial or counter-memorial (as the case may be) score is higher than
the other team’s. After the preliminary rounds, the memorial/counter-memorial scores will not
be factored in.
The elimination rounds will proceed as follows
Qtr 1st
2nd
1st
2nd
1st
2nd
1st
2nd
Semi
Final
The roles of claimant and respondent will be assigned, as far as possible so that each team
argues each role at least once in the elimination rounds, and otherwise by lot.
ORALS - INDIVIDUALS
We will adjust scores awarded by each arbitrator according to their mean deviation in order to
reduce the impact of any “easy” or “hard” graders over the course of the competition.
HIGHEST RANKING TEAM
Each team’s memorial and counter-memorial scores will be used to allocate between 150 and
300 points to each, and will be added to its aggregate adjusted individual oral scores for
Rounds 1-4.
GUIDELINES TO JUDGING ORAL ADVOCACY ARGUMENTS
Thank you for agreeing to arbitrate oral rounds in this year's FDI Moot. We have prepared the
following guide for the oral advocacy rounds before arbitrators. You may find that some of
these comments are common to moot competitions generally, while others are particular to
the FDI Moot.
I. WHO'S WHO IN AN FDI MOOT MATCH
An oral match pits two teams against one another, one representing the Claimant and the other
representing the Respondent (State). Each team consists of two oral advocates who will share
the allotted time. Below is a typical seating configuration.
1
For the purposes of the pairing and scoring, we will use the Sevilla Chess Tournament program with Bucholtz
scores.
The Skadden, Arps 2010 FDI Moot
Each arbitrator will serve as a member of a three-member arbitral panel. The "President" sits
in the middle of the panel. The duties of the President are to: (1) signal when the oral
advocates may begin or end their arguments; (2) along with the co-arbitrators to question the
advocates; (3) to answer procedural questions by the advocates ("May I have one minute extra
time to finish my answer?"); and (4) generally maintain order in the proceedings.
The ICSID arbitration rules envisage parties being represented by “agents, counsel or
advocates”. Therefore, you may hear the advocates refer to "my Co-Counsel" or "the Agent
for the Respondent." Arbitrators are addressed as "Mister/Madame Arbitrator or by their titles
and surnames (available on the name plates), e.g. “Mr. Berger”, “Prof. Loyola”. The President
may be referred to as "Mister President" or "Madam President."
The Secretary of the Tribunal will aid Arbitrators in the hearing room. Prior to the match, the
Secretary obtains the correct spellings of the oral advocates names and each team's time
allocation. The Secretary records this information on the match score sheet and transmits this
to the arbitrators. At the beginning of the round, the secretary will usher the arbitrators into
the hearing room, announcing the case and introducing each arbitrator. During the match, the
Secretary must track how much time remains for each advocate’s argument and indicate this
by holding up cards for the teams and the panel to see (“3 minutes”, “1 minute”, “STOP”,
which indicates the advocate’s allotted time has expired).
II. THE ORDER OF ARGUMENT
Each team has 40 minutes to present its case. The team allocates its time among its first
advocate, its second advocate, and any rebuttal (or surrebuttal). Before arbitrators enter the
hearing room, each team will have indicated to the Secretary how it wishes to divide the 40
minutes among these parts, for which purpose teams must appear before the Secretary at least
5 minutes before the hearing is scheduled to begin.
• The team may announce its time allocation to the panel at the outset of its argument.
• The team need not determine ahead of time which advocate will deliver rebuttal or
surrebuttal. This is often a strategic choice, made during the course of opposing counsels'
arguments.
The Skadden, Arps 2010 FDI Moot
The match begins with the President inviting counsel and the audience to be seated Hearings
should be structured as flexibly as the teams may agree (or failing that) as the President
directs, so long as basic procedural fairness is respected. The order of presentation in an oral
match might be, for example:
Alternative 1 Alternative 2
1.Claimant on Admissibility/Jurisdiction
2. Claimant on Merits
3. Respondent on Admissibility/Jurisdiction
4. Respondent on Merits
5. Claimant's Rebuttal (unless waived)
6. Respondent's Surrebuttal (unless waived)
1. Respondent on Admissibility/Jurisdiction
2. Claimant on Admissibility/Jurisdiction
3. Claimant on Merits
4. Respondent on Merits
5. Claimant's Rebuttal (unless waived)
6. Respondent's Surrebuttal (unless waived)
Teams should discuss between each other before the tribunal enters, whether they can agree
on an order. If an order is agreed, both teams should so indicate to the tribunal. If there is no
agreement, each team may propose an order to the tribunal, but there will be no argument on
the matter, and the President shall decide how to proceed, accepting either team’s proposal or
adopting his or her own alternative. In all cases, the order should be made clear to the
Secretary so that he or she can keep time on the oralists. For the sake of the time-keeping, the
tribunal should not permit a debate back and forth between the parties’ counsel.
If Claimant waives rebuttal (which it may do by informing the panel when the time for
rebuttal arises), then Respondent does not have an opportunity to exercise surrebuttal.
At the end of the final argument, the Secretary will ask the Counsel and audience to rise and
leave the room. The arbitrators will then begin deliberations (maximum 10 minutes).
When the arbitrators have finished deliberating and have scored the match, the President will
instruct the Secretary to bring the competitors and audience back into the hearing room. At
this point, court is no longer formally in session; arbitrators may give the advocates feedback
on their performance (see below). Arbitrators must not give the teams substantive tips.
If anything inappropriate happens during the match, the President should eliminate the
disturbance without unduly influencing the flow of the match, and note this on his or her score
sheet under “Comments”. The Secretary will notify the Administrator when submitting the
score sheet. The Administrator will investigate and assess the appropriate penalties. Oralmatch
misconduct is uncommon, but includes:
• Team members at counsel table talking to (or receiving notes from) spectators. Laptop use at
counsel table is prohibited. Without interrupting the advocate speaking, the President should
instruct the team to stop the communication.
• Spectators entering or leaving during the match. If repeated movement disturbs the match,
admonish the audience to have respect for the advocates.
• Team members leaving counsel table during the match. Inform the Secretary at the end of
the match.
• Generally disruptive conduct at counsel table. Instruct the team to have respect for the
opposing counsel at the podium.
III. THE ROLE OF THE ARBITRATOR
The Skadden, Arps 2010 FDI Moot
Opinions differ regarding the role of an arbitrator in a moot competition. One view is that an
arbitrator should ensure that participants complete their entire presentation. Another is that
participants are truly tested only when a lively panel engages advocates in a dialogue.
The best panels are able to find a balance between the two. Most observers agree that
arbitrators should at least ask questions of a sufficient difficulty and in a sufficient quantity to
prevent the competitors from merely reading a rehearsed speech. Participants have worked on
the FDI Moot Problem for several months, and generally appreciate being tested on the
material. At the same time, arbitrators should refrain from taking up too much time by asking
long questions or making lengthy comments of their own.
Arbitrators must not decide this case on the merits, but instead on the performances of the oral
advocates. An arbitrator should evaluate the strength of each advocate's overall presentation,
the validity of the participants' arguments, the persuasiveness of their presentation, their poise
and advocacy skills, and the thoroughness of their preparation. The score sheet outlines the
criteria for the oral presentation.
Please note that oral advocates are not bound by their written arguments. Since written
memorials were submitted, subsequent research (and subsequent oral rounds) may lead
advocates to revise the substance, style and structure of their arguments.
The oral advocates will assume that the arbitrators are generally familiar with the facts of the
case. Therefore, advocates will likely not ask the tribunal if it wishes to hear a recitation all
the facts. Instead, advocates may focus only on those facts that are directly pertinent to their
legal arguments.
IV. HELPFUL HINTS FOR ARBITRATORS
A. DURING THE MATCH:
• Utilize concise questions that call for a “yes” or “no” answer. Such questions test an oral
advocate's ability to answer directly and clarify the competitor’s position on an issue.
• Feel free to ask “basic” questions, including the nature and sources of international
investment law. Such questions ensure that the advocate understands international law and is
not merely reciting memorized details.
• Avoid asking rhetorical questions or making lengthy statements that use up the time of the
participants.
• Avoid lengthy debates with the advocates. Feel free to press for a direct answer, but avoid
monopolizing the advocate's time.
• Question each advocate equally. Evaluating the match is easier when all advocates have
been equally tested by the panel.
• Avoid grilling an advocate about his/her teammate's argument. Each advocate should be
generally familiar with the team's entire argument, but is not expected to have a detailed grasp
of his/her co-counsel's argument. You may, however, explore inconsistencies between the
two.
• Respect the time limits on oral argument. The President may generally grant an advocate
extra time solely for answering a specific question or briefly concluding the presentation.
• Many competitors are not native English speakers; if you determine that an advocate is not a
native speaker, it may be useful to avoid asking long, complicated questions.
• Remember that teams come from different countries with a wide variety of legal resources.
Some teams are at a disadvantage in this respect. The FDI Moot issues are intended to be
answerable by reference to generally available materials and a careful reading of the facts.
The Skadden, Arps 2010 FDI Moot
B. AFTER THE ORAL MATCH - DELIBERATIONS:
At the end of the match after the competitors and audience have left the room, arbitrators may
begin deliberating. Some arbitrators prefer to discuss the match with the other arbitrators,
while others do not wish to be “influenced”. Either approach is acceptable. Please do not
deliberate more than 10 minutes and remember:
• Reasonable arbitrators disagree. Don't worry if you score the match considerably differently
than the other arbitrators. “Split panels” are a common outcome in practice and in moot
competitions.
• You alone are responsible for your score. While discussions among arbitrators may be
useful, do not feel pressured to adjust your scores to match those of the others.
• Do not speak about the merits of the case (or the results of the match) once the competitors
re-enter the room, as they may try to interpret comments made by the arbitrators.
C. AFTER THE ORAL MATCH - ARBITRATORS' COMMENTS TO THE TEAMS:
After the scores have been submitted to the Secretary, the Secretary will ask the advocates
and spectators to return to the room, and deliver the score sheet immediately to the
Administrator. Meanwhile, arbitrators may give feedback to the oral advocates. Generally, it
is nice to preface comments with a brief introduction by each arbitrator as to his or her
background (i.e., any arbitration, international law, and current job). Please:
• do not announce the winner of a match or the scores of advocates;
• do not give substantive comments to the competitors or suggest alternative arguments to the
teams. Substantive advice gives the teams before you an unfair advantage over other teams.
You may comment on an advocate’s poise, the structure of his/her argument, and other
general tips on oral advocacy.
• do not ask the advocates which school or which country they represent. Oral arguments are
anonymous. Even if you are not scheduled to arbitrate again, others may overhear the answer.
At the end of the FDI Moot, identities will be revealed.
• keep your comments brief (in total under 10 minutes). The FDI Moot is run on a tight
timetable. Students may need to argue shortly after the match, the Administrator will need the
room and the arbitrators for another match.
• remind the advocates that there are many different opinions regarding oral presentation
styles. Avoid categorical statements regarding argument style.
• do not opine that the problem is unbalanced or that one side is “correct”, as it may give the
advocates the false impression that you favored the advocates arguing the more meritorious
side. The point of the FDI Moot is not to determine which side of the argument is more
meritorious.
• do not confess ignorance of the subject matter of the problem. Instead, compliment the
advocates on their preparation.
Please also see the sample http://www.fdimoot.org/2010/MatchScoreSheet.pdf, which the
Secretary submits to the Administrator, and
http://www.fdimoot.org/2010/ScoreWorksheet.pdf, which the Arbitrator should retain (at least
until the end of the Competition).